Full Judgment Text
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CASE NO.:
Appeal (civil) 3528 of 2006
PETITIONER:
Union of India & Anr.
RESPONDENT:
K.G. Soni
DATE OF JUDGMENT: 17/08/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 19946 of 2004)
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by a
Division Bench of the Madhya Pradesh High Court at Jabalpur
holding that the punishment of compulsory retirement
imposed on the respondent was disproportionate to the alleged
misconduct. Therefore, the Appellate Authority was directed to
consider the matter afresh with regard to the quantum of
punishment.
Background facts in a nutshell are as follows:
Respondent was a Store Attendant in the Bank Note
Press, District Dewas (M.P). A charge-sheet was issued against
him on the foundation that though he had got married with
one Parvathibai in the year 1973, while filling up the
attestation form on 16.3.1974, he did not show her name as
his wife. It was further alleged that he got married for the
second time in October, 1974 with one Ushabai. On the basis
of this non-disclosure, which, authorities considered to be a
misconduct, a disciplinary proceeding was initiated. It is to be
noted that the non-disclosure came to the notice of the
authorities when Parvathibai made a complaint about the
second marriage. The enquiry was conducted under Central
Civil Services (Classification, Control and Appeal) Rules, 1965
(in short the ’Rules’). The Enquiry Officer recorded findings in
favour of the respondent. The Disciplinary Authority differed
with the findings of the Inquiry Officer and came to hold that
second marriage had in fact been performed and accordingly it
issued show cause notice to the respondent and eventually
came to hold that the respondent was guilty of misconduct
and imposed the punishment of removal by order dated
2.4.1996.
The respondent being aggrieved preferred an appeal and
the Appellate Authority converted the punishment of removal
into one of compulsory retirement. The said order was passed
on 15.4.1997.
Being aggrieved with the aforesaid order, the respondent
approached the Central Administrative Tribunal, Jabalpur
Bench (in short the ’Tribunal’) on 13.12.1998. The Tribunal
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came to hold that the application was barred by limitation and
accordingly declined to entertain the same. The Tribunal
recorded a finding that no application for condonation of delay
has been filed.
Assailing order passed by the Tribunal a Writ application
was filed. It was submitted that the Tribunal had erroneously
held that there was no application for condonation of delay.
This is not one of those cases where cognizance cannot be
taken by the Tribunal under Section 21(2) of the
Administrative Tribunal Act, 1985 (in short the ’Tribunal Act’).
It was, therefore, submitted that the Tribunal should have
condoned the delay and dealt with the matter on merits. It was
further submitted that the quantum of punishment awarded
did not commensurate with the alleged misconduct.
The appellants took the stand that the punishment
awarded was rather liberal and no interference was called for.
The High Court was of the view that ordinarily it would
have remanded the matter to Tribunal for fresh consideration
on merits but it was of the view that this is a fit case where the
matter should be remitted to the Appellate Authority for
reconsideration with regard to the quantum of punishment.
The only basis for coming to the conclusion that the complaint
was made by the wife about the alleged second marriage
belatedly, and this is not such a misconduct which warrants
compulsory retirement before his superannuation.
In support of the appeal learned counsel for the
appellants submitted that the High Court has clearly lost sight
of the scope for interference with the quantum of punishment.
In response, learned counsel for the respondent
supported the judgment.
It is to be noted that the Appellate Authority had noted as
follows:-
"Although, after careful consideration of
22 years services rendered by him in Bank
Note Press, the undersigned as an Appellate
Authority has cordially considered the appeal
using the powers conferred under Rule 27 of
Central Civil Service (Classification, Central
and Appeal) Rule, 1965 that the penalty
imposed upon him the removal from services
has been termed as cancelled and in place of
this, Sh. K.G. Soni, Ex.Sr. Attendant has been
awarded a penalty of Compulsory Retirement
w.e.f. 02.04.1996. As a result of Compulsory
Retirement, Sh. K.G. Soni has entitled for
payment of full pension, Gratuity etc. under
Rule Central Civil Services (Pension) Rule,
1972."
In B.C. Chaturvedi v. Union of India and Ors. (1995 [6]
SCC 749) it was observed:
"A review of the above legal position
would establish that the disciplinary authority,
and on appeal the appellate authority, being
fact-finding authorities have exclusive power to
consider the evidence with a view to maintain
discipline. They are invested with the
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discretion to impose appropriate punishment
keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while
exercising the power of judicial review, cannot
normally substitute its own conclusion on
penalty and impose some other penalty. If the
punishment imposed by the disciplinary
authority or the appellate authority shocks the
conscience of the High Court/Tribunal, it
would appropriately mould the relief, either
directing the disciplinary/appellate authority
to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in
exceptional and rare cases, impose appropriate
punishment with cogent reasons in support
thereof."
In Union of India and Anr. v. G. Ganayutham (1997 [7]
SCC 463), this Court summed up the position relating to
proportionality in paragraphs 31 and 32, which read as
follows:
"The current position of proportionality in
administrative law in England and India can
be summarized as follows:
(1) To judge the validity of any
administrative order or statutory
discretion, normally the Wednesbury test
is to be applied to find out if the decision
was illegal or suffered from procedural
improprieties or was one which no
sensible decision-maker could, on the
material before him and within the
framework of the law, have arrived at.
The court would consider whether
relevant matters had not been taken into
account or whether irrelevant matters
had been taken into account or whether
the action was not bona fide. The court
would also consider whether the decision
was absurd or perverse. The court would
not however go into the correctness of the
choice made by the administrator
amongst the various alternatives open to
him. Nor could the court substitute its
decision to that of the administrator.
This is the Wednesbury (1948 1 KB 223)
test.
(2) The court would not interfere
with the administrator’s decision unless
it was illegal or suffered from procedural
impropriety or was irrational \026 in the
sense that it was in outrageous defiance
of logic or moral standards. The
possibility of other tests, including
proportionality being brought into
English administrative law in future is
not ruled out. These are the CCSU (1985
AC 374) principles.
(3)(a) As per Bugdaycay (1987 AC
514), Brind (1991 (1) AC 696) and Smith
(1996 (1) All ER 257) as long as the
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Convention is not incorporated into
English law, the English courts merely
exercise a secondary judgment to find out
if the decision-maker could have, on the
material before him, arrived at the
primary judgment in the manner he has
done.
(3)(b) If the Convention is
incorporated in England making available
the principle of proportionality, then the
English courts will render primary
judgment on the validity of the
administrative action and find out if the
restriction is disproportionate or
excessive or is not based upon a fair
balancing of the fundamental freedom
and the need for the restriction
thereupon.
(4)(a) The position in our country, in
administrative law, where no
fundamental freedoms as aforesaid are
involved, is that the courts/tribunals will
only play a secondary role while the
primary judgment as to reasonableness
will remain with the executive or
administrative authority. The secondary
judgment of the court is to be based on
Wednesbury and CCSU principles as
stated by Lord Greene and Lord Diplock
respectively to find if the executive or
administrative authority has reasonably
arrived at his decision as the primary
authority.
(4)(b) Whether in the case of
administrative or executive action
affecting fundamental freedoms, the
courts in our country will apply the
principle of "proportionality" and assume
a primary role, is left open, to be decided
in an appropriate case where such action
is alleged to offend fundamental
freedoms. It will be then necessary to
decide whether the courts will have a
primary role only if the freedoms under
Articles 19, 21 etc. are involved and not
for Article 14."
The common thread running through in all these
decisions is that the Court should not interfere with the
administrator’s decision unless it was illogical or suffers from
procedural impropriety or was shocking to the conscience of
the Court, in the sense that it was in defiance of logic or moral
standards. In view of what has been stated in the
Wednesbury’s case (supra) the Court would not go into the
correctness of the choice made by the administrator open to
him and the Court should not substitute its decision to that
of the administrator. The scope of judicial review is limited to
the deficiency in decision-making process and not the
decision.
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To put differently, unless the punishment imposed by the
Disciplinary Authority or the Appellate Authority shocks the
conscience of the Court/Tribunal, there is no scope for
interference. Further to shorten litigations it may, in
exceptional and rare cases, impose appropriate punishment by
recording cogent reasons in support thereof. In a normal
course if the punishment imposed is shockingly
disproportionate, it would be appropriate to direct the
Disciplinary Authority or the Appellate Authority to reconsider
the penalty imposed.
The above position was recently reiterated in Damoh
Panna Sagar Rural Regional Bank and Others v. Munna Lal
Jain (2005 (10) SCC 84).
The High Court has not kept the correct position in view.
It has not even indicated as to why the punishment was
considered disproportionate and why it considered the
misconduct to be not serious.
The impugned order of the High Court is set aside and
that of the Appellate Authority, the operative part of which has
been quoted above, is restored.
The appeal is allowed without any order as to costs.